Governor Gretchen Whitmer’s Executive Order 2020-21—the “Stay Home, Stay Safe” order—and various county emergency orders issued in the wake of the COVID-19 pandemic have raised numerous questions regarding their interpretation and enforcement. State leaders in public health, state directors, and the attorney general have commented upon enforcement or issued orders of their own. This article highlights the existing information about this fast-developing issue.
Pursuant to the Michigan Emergency Management Act, a willful violation of E.O. 2020-21, which was released on March 23, 2020, is a misdemeanor punishable by up to 90 days in jail and/or a $500 fine.
The Michigan Public Health Code authorizes counties to issue their own COVID-19 emergency orders. Many, including the counties of Wayne, Oakland, and Washtenaw, have done just that. The Michigan Department of Health and Human Services (MDHSS) representative can do either or both of the following: (a) issue a citation to anyone believed to be in violation of the order; or (b) petition the circuit court for an injunction to eliminate an imminent danger to public health. The statute provides that a civil penalty of $1,000 for each violation or day that a violation continues may be assessed within 90 days after discovery of the alleged violation (meaning that a violation that occurs in March or April could be cited immediately or potentially not until June or July).
Guidance From the Attorney General on Investigation Potential of E.O. 2020-21
The Michigan attorney general’s guidelines advise local law enforcement authorities on how to investigate and address alleged violations of E.O. 2020-21. This includes guidance for local authorities when ascertaining if a business is operating in violation of the executive order. In summary, the attorney general directs local authorities to follow these steps:
- “Determine if complaint alleges activity that, if true, could be a violation. Note: Being required to work is not, in and of itself, a violation (e.g. working in a critical infrastructure setting may be permissible).”
- If the complaint is facially valid, visit the site to confirm activity is taking place. This often should include a dialogue with the business owner or other person with authority.
- Discuss with the person in authority the justification for operating under E.O. 2020-21 and request this person to be specific as to what provision of E.O. 2020-21 allows the business to remain functioning with in-person work.
- If the officer determines a violation is happening, explain the scope of E.O. 2020-21 and request that the conduct be terminated.
- If the person with authority refuses to comply and the violation is clear, the officer could either: (a) cite the owner or person with authority under the statute, or (b) present a report to the appropriate prosecuting official for review.
- The prosecuting official may either: (a) send the business a formal warning letter prior to initiating a criminal case; or (b) proceed to initiate a criminal case without a warning letter.
- If the prosecuting official is unable to proceed with the case, the Attorney General may review it.”
The Public Health Department’s Emergency Order and Enforcement Powers
Consistent with the Public Health Code, on April 2, 2020, MDHHS Director Robert Gordon issued an emergency order, setting a civil penalty of up to $1,000 and a process for referral to licensing agencies for violations of E.O. 2020-21, as well as the orders placing temporary restrictions on the use of places of public accommodation (E.O. 2020-20) and a temporary prohibition on large assemblages and events (E.O. 2020-11). Criminal penalties for violation will remain an option for prosecutors. Places of religious worship are exempt.
In addition to investigating compliance with their own county orders, the MDHHS order specifically authorizes county health departments to carry out and enforce the terms of various executive orders. Chiefs of police, sheriffs, and other local law enforcement leaders are specifically authorized to investigate potential violations of E.O. 2020-11, E.O. 2020-20, and E.O. 2020-21. Law enforcement may coordinate as necessary with the local health department and enforce the MDHHS order within their jurisdiction.
Importantly, the MDHHS order provides that law enforcement authorities are “specifically authorized to bar access to businesses and operations that fail to comply with the procedures and restrictions outlined in EO 2020-11, EO 2020-20, and EO 2020-21 and its accompanying FAQs.” County prosecutors are likewise specifically authorized to enforce the MDHHS order to control the pandemic and protect the public health in coordination with the appropriate local law enforcement authority, and, as necessary, the local health department.
To assure compliance with the MDHHS order, the Public Health Code gives the department the authority to inspect, investigate, or authorize an inspection or investigation of any business facility or premises. The department may apply for an inspection or investigation warrant to carry this out, and an inspection or investigation warrant may be directed to the sheriff or any law enforcement officer, commanding the officer to assist the state or local health department in the inspection or investigation.
Guidance From the Attorney General on Traffic Stops
The attorney general stated that a police officer may not conduct a traffic stop merely to inquire about compliance with E.O. 2020-21. Absent articulable facts that would lead a reasonable police officer to believe the driver of the vehicle was in violation of the order, a stop strictly to inquire about compliance is improper.
Furthermore, employees who are designated as critical infrastructure workers are not required to carry credentials or paperwork when traveling to and from their work and homes or residences. While it certainly could not hurt to carry such paperwork out of an abundance of caution, law enforcement officials do not have the authority to issue citations to individuals not carrying such paperwork who are otherwise authorized under E.O. 2020-21 to go to work.
Protecting Workers Who Stay Home, Stay Safe
On April 3, 2020, Governor Whitmer signed Executive Order 2020-36, which declares it the public policy of Michigan that “an employer shall not discharge, discipline, or otherwise retaliate against an employee for staying home when he or she is particularly at risk of infecting others with COVID-19.” E.O. 2020-36 expands the protections of Michigan’s Paid Medical Leave Act until the end of the declared state of emergency.
Public officials are putting a full-court press on Michigan businesses to combat the spread of COVID-19 under their emergency authority. Employers may want to take the time to understand their rights and responsibilities in order to save themselves and their employees from the possibility of added costs, fines, and possibly jail time.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.